Before his trial in 1998, defendant filed a "Demurrer
to Indictment and Alternative Motion to Dismiss" arguing that
"ORS 181.594 et seq. and ORS 181.599 are unconstitutional in that
they violate the ex post facto clauses of the Constitution of the
United States and of the State of Oregon." The trial court
overruled defendant's demurrer. Defendant was convicted for
failing to register as a sex offender and was sentenced to 60
days incarceration.

Defendant appealed to the Court of Appeals, arguing
that, because Oregon did not have a sex offender registration law
when he committed sexual abuse in 1987, requiring him to register
as a sex offender under the 1995 law is an unconstitutional ex
post facto application of law. The Court of Appeals rejected
defendant's argument and affirmed his conviction. State v.
MacNab, 170 Or App 538, 13 P3d 167 (2000). We allowed
defendant's petition for review and now affirm the decision of
the Court of Appeals.

As a preliminary matter, we address the state's
assertion that there is no ex post facto issue in this case
"because 'the law' was not applied retroactively." In other
words, the state contends that the conduct for which the trial
court convicted defendant is "failing to register," and that it
is undisputed that that criminal conduct occurred after the
legislature enacted the registration law at issue. We reject
that contention because it misstates the legal challenge that
defendant has framed. As noted above, defendant contends that
requiring him to register as a sex offender imposes a punishment
that was not part of Oregon law in 1987, the year he committed
his act of sexual misconduct.

As to the issue that defendant has framed, the state
contends that the sex offender registration requirement is a
regulatory law that does not increase defendant's punishment in
violation of either ex post facto provision. To identify the
parameters of the constitutional issue that we resolve in this
case, we briefly summarize the history of Oregon's sex offender
registration laws.

Before 1989, Oregon did not have a sex offender
registration law. (5) However, in 1989, the legislature enacted
former ORS 181.518 (1989), which required convicted sex offenders
to register with OSP for a period of five years. That statute
also required an offender, during that five-year period, to
report any change of address within 30 days. There was no
penalty for noncompliance. The legislature added penalties for
noncompliance in 1991 when it passed Oregon Laws 1991, chapter
389, section 4, making it a felony to fail to report a change of
address if the offender's underlying crime was a felony. The law
classified an offender's failure to file an annual report as a
violation. Id.

In 1993, the legislature enacted former ORS 181.507
(1993), renumbered as ORS 181.585 (1995), which allowed
supervising agencies to classify certain offenders as "predatory"
sex offenders. That classification permitted the supervising
agency, pursuant to former ORS 181.508 (1993), renumbered as ORS
181.586 (1995), to notify "anyone whom the agency determines is
appropriate that the person is a predatory sex offender."

Defendant argues that the 1995 sex offender
registration law falls into the third category of ex post facto
laws because requiring him to register as a sex offender
increases his punishment beyond that annexed to his 1987 sexual
abuse crime. Thus the issue is whether the 1995 sex offender
registration law imposes a form of increased punishment that
Article I, section 21, prohibits. SeeState v. Rogers, 330 Or
282, 297, 4 P3d 1261 (2000) (court should "apply faithfully the
principles embodied in the Oregon Constitution to modern
circumstances as those circumstances arise").

We begin with the text of Article I, section 21, and
observe that all that can be gleaned from the text is that it
forbids the passage of laws "after the fact." Cookman, 324 Or at
26. The word "punishment" is not a part of the text of Article
I, section 21. However, in Fugate this court interpreted Article
I, section 21, to forbid laws that inflict "punishment" not
annexed to the crime at the time of commission. See 332 Or 211-13 (discussing four Calder categories).

Although the text of Article I, section 21, does not
reveal the conceptual contours of "punishment," the framers had
available to them a mid-nineteenth century law dictionary that
contained the following comprehensive definition of punishment:

"some pain or penalty warranted by law, inflicted on a
person, for the commission of a crime or misdemeanor,
by the judgment and command of some lawful court.
Punishments are either corporal or not corporal. * *
*. The punishments which are non corporal, are fines;
forfeitures; suspension or deprivation of some
political or civil right; deprivation of office, and
being rendered incapable to hold office; compulsion to
remove nuisances. The object of punishment is to
reform the offender; to deter him and others from
committing like offences; and to protect society."

John Bouvier, II A Law Dictionary Adapted to the Constitution and
Laws of the United States of America, and of the Several States
of the American Union, 311 (1839) (citing Vide 4 Bl Com 7;
Rutherf Inst B 1, ch 18). SeeSmothers v. Gresham Transfer,
Inc., 332 Or 83, 92, 23 P3d 333 (2001) (referring to same
dictionary to determine meaning of word "remedy," as intended by
framers of Article I, section 10, of Oregon Constitution).

Thus, by the mid-nineteenth century, noncorporal
sanctions such as fines, forfeitures and suspensions or
deprivations of some political or civil rights, were included
within the accepted legal dictionary definition of "punishment."
Notably, each form of noncorporal sanction within that definition
imposes on the offender some detriment, restraint, or deprivation
that is intended to deter the offender and others from committing
future offenses.

We turn next to this court's case law. Neither party
refers the court to a case that makes clear the parameters of
punishment that Article I, section 21, prohibits. Defendant
asserts, however, that this court's opinion in Brown v. Multnomah
County Dist. Ct., 280 Or 95, 570 P2d 52 (1977), provides some
guidance in defining prohibited punishment under Article I,
section 21.

Brown required the court to determine whether a first
offense driving under the influence proceeding for which no
imprisonment was authorized was, nevertheless, a "criminal
prosecution" that triggered a defendant's constitutional right to
appointed counsel, jury trial, and proof beyond a reasonable
doubt. The Brown court identified a number of "indicia" that it
considered relevant in determining whether an ostensibly civil
proceeding nevertheless retained "punitive traits that
characterize a criminal prosecution." 280 Or at 110.

One of the indicia that Brown described as importing
"punitive significance" provides some general guidance about the
principles that underlie the concept of punishment. In that
regard, the Brown court commented that the purpose of criminal
law customarily is stated to be "'retribution and deterrence,' *
* * meaning deterrence both of the individual defendant and of
persons in his situation generally." 280 Or at 105.
Nevertheless, the court noted that, because "deterrence is
equally a purpose of other sanctions," identifying the deterrent
effect of a law does not necessarily establish that a law is
"punitive." Id. Finally, the Brown court acknowledged that at
least one leading scholar had concluded that the "stigma of
[community] condemnation" is the overriding principle that tends
to separate criminal from civil sanctions. Id. at 106 (citing
Hart, The Aims of the Criminal Law, 23 Law & Contemp Prob 401,
404 (1958)). Informed by Brown's "punitive significance"
discussion, we turn to the historical circumstances that led to
the creation of Article I, section 21.

"The first thing then to be determined is, whether
[the law in question] is an ex post facto law?
Blackstone defines an ex post facto law to be a law
made after the commission of an indifferent act,
declaring the act to be a crime, and inflicting a
punishment upon the person who committed it."

Martindale v. Moore, 3 Blackf 275, 276 (1833).

Blackstone's definition of an ex post facto law also
was deemed to be "precisely in the same light" as the meaning
Justice Chase ascribed to the federal ex post facto clause in
Calder. SeeCookman, 324 Or at 30 (citing Calder reference to
Blackstone).

Neither Martindale nor Calder defined "punishment" for
purposes of the ex post facto prohibition. However, both cases
referred to Blackstone to discern the meaning of the ex post
facto clauses. Blackstone was also available to the framers of
the Oregon Constitution when they adopted the Indiana ex post
facto clause as Article I, section 21, of the Oregon
Constitution. Blackstone's chapter 29 entitled "OF JUDGMENT, AND
IT'S CONSEQUENCES" includes a detailed discussion of the common
forms of punishment for the violation of criminal laws.
Blackstone described those as follows:

"Some punishments consist in exile or banishment, by
abjuration of the realm, or transportation to the
American colonies: others in loss of liberty, by
perpetual or temporary imprisonment. Some extend to
confiscation, by forfeiture of lands, or moveables, or
both, or of the profits of lands for life: others
induce a disability, of holding offices or employments,
being heirs, executors, and the like. Some, though
rarely, occasion a mutilation or dismembering, by
cutting off the hand or ears: others fix a lasting
stigma on the offender, by slitting the nostrils, or
branding in the hand or face. Some are merely
pecuniary, by stated or discretionary fines: and lastly
there are others, that consist principally in their
ignominy, though most of them are mixed with some
degree of corporal pain; and these are inflicted
chiefly for crimes, which arise from indigence, or
which render even opulence disgraceful."

William Blackstone, 4 Commentaries on the Laws of England *370
(1769).

When the legislature passed the sex offender
registration law in 1991, it declared expressly that "[t]he
purpose of ORS 181.517, ORS 181.518 and ORS 181.519 and sections
4 to 6 [making failure to register a crime] of this Act is to
assist law enforcement agencies in preventing future sex
offenses." Or Laws 1991, ch 389, � 7. The operation of the law
conforms to the legislature's declared purpose.

The 1995 registration requirement does not subject an
offender to undue restraint in the form of comprehensive or
intrusive police scrutiny, control, or monitoring. The offender
remains free to come and go as he or she pleases. To the extent
that the police may regard registered sex offenders as possible
suspects in the investigation of sex crimes, ultimately that is a
function of the offender's criminal history. Similarly, to the
extent that an offender is deterred by the registration
requirement from committing future crimes, the deterrent effect
is a secondary or ancillary one, similar to the deterrent effect
associated with civil sanctions such as driver license
suspensions, and Oregon State Bar suspensions and disbarments.
Seee.g., In re Harris, 334 Or 353, 49 P3d 778 (2002) (lawyer
disciplinary proceeding not punishment); Burbage v. Dept. of
Motor Vehicles, 252 Or 486, 491, 450 P2d 775 (1969) (suspension
proceeding nonpunitive); State v. Robinson, 235 Or 524, 532, 385
P2d 754 (1963) (driver license revocation proceeding not
punishment nor intended to be punishment); Ex parte Finn, 32 Or
519, 531, 52 P 756 (1898) (disbarment proceeding not punishment).

Based on the foregoing, we conclude that requiring
defendant to register as a sex offender does not impose any
significant detriment, restraint, or deprivation on defendant
and, therefore, is not a form of increased "punishment"
prohibited by Article I, section 21, of the Oregon Constitution.
We now turn to the federal ex post facto clause.

Under the two-part test, the first inquiry is whether
the legislature intended the law in question to be punitive or
regulatory. That inquiry focuses on the declared purpose of the
legislature. See generallyUnited States v. Ward, 448 US 242,
249, 100 S Ct 2636, 65 L Ed 2d 742 (1980) (providing example).

An noted earlier, in 1991, the legislature declared
expressly that "[t]he purpose of ORS 181.517, ORS 181.518 and
ORS 181.519 and sections 4 to 6 of this Act [making failure to
register a crime] is to assist law enforcement agencies in
preventing future sex offenses." Or Laws 1991, ch 389, � 7.
Requiring offenders to apprise law enforcement officials of
basic identifying information, including the offender's
whereabouts, is consistent with the legislature's declared
purpose. We need look no further than the legislature's recital
and the structure of the statutes to conclude that the purpose
of the registration requirement is regulatory. However, the
legislature's declared regulatory purpose does not establish
conclusively that the law is not otherwise punitive in effect
and, therefore, violative of the federal ex post facto clause.

The second part of the analysis requires a
determination of whether the registration law is nevertheless so
punitive in effect that it negates the legislature's regulatory
intent. Ward, 448 US at 249. With regard to the second
inquiry, the Supreme Court has cautioned that when the
legislature's declared purpose is regulatory, the party
challenging the law must provide the "clearest proof" that the
effect of the law is otherwise. SeeWard, 448 US at 248-49 (so
stating).

We have considered the factors identified in Kennedy
as they relate to the 1995 sex offender registration law. For
the reasons expressed in our analysis under Article I, section
21, of the Oregon Constitution, we conclude that there is not
"the clearest proof" that the sex offender registration scheme
is punitive in either its purpose or effect. It follows that
requiring defendant to register as a sex offender does not
impose increased punishment not annexed to defendant's 1987 sex
crime and, therefore, does not violate the ex post facto clause
of the United States Constitution.

The decision of the Court of Appeals and the judgment
of the circuit court are affirmed.

"(1) A person who has knowledge of the
registration requirement and who fails to make the
initial registration or to register following a change
of address as required by ORS 181.595 and 181.596 * * *
commits a:

"(a) Class C felony, if the crime for which the
person is required to register is a felony[.]"

ORS 181.596(3) (1995) provided:

"Following discharge, release from active parole or
other supervised or conditional release, the person [,a
convicted sex offender,] shall provide, in writing, the
address of the person to the Oregon State Police:

"(a) Within 30 days of a change of residence; and

"(b) Once each year regardless of whether the
person changed address."

"The defendant, on or about 3/6/96, in the County
of Benton and State of Oregon, being a person required
by law to register with the Oregon State Police as a
sex offender and having knowledge of the registration
required, did unlawfully, feloniously and knowingly
fail to register."

4. Defendant concedes that, as a matter of statutory
construction, the legislature intended the 1995 sex offender
registration law to apply to offenders convicted before the
passage of the law. We agree that the legislature intended that
application of the law.

6. Currently, ORS 181.592(4)(a) and (b) (2001) provide
authority for the Department of State Police to make certain sex
offender registration information available to the public. In
1999, the state police promulgated OAR 257-070-0030 (1999), which
established the "Sex Offender Web Site." However, that rule was
certified with the Secretary of State on September 13, 1999, to
be a temporary rule effective only through March 10, 2000. Our
research suggests that since March 10, 2000, OSP has not adopted
another administrative rule that outlines procedures for
implementing public notification of sexual offenders over the
Internet.

7. On review, defendant also argues that retroactive
application of Senate Bill 740 (1999), which authorized OSP to
adopt rules concerning sex offender registration and electronic
community notification, violates the ex post facto clauses of the
federal and state constitutions. We decline to address
defendant's arguments regarding Senate Bill 740 because there is
no evidence in this record that OSP has placed defendant on a
"Sex Offender Web Site," or that OSP has applied any aspect of
that law to him.

8. In Cookman, this court noted that "its past reliance on
the [U.S.] Supreme Court's pronouncements when construing
Oregon's law do not imply that the meaning of Oregon's law is
forever fixed to the federal courts' understanding of analogous
federal law." 324 Or at 27 n 7.

9. Defendant urges this court, instead of relying
exclusively on the four Calder v. Bull, 3 US (3 Dall) 386, 1 L Ed
548 (1798), categories, to rely on the factors listed in Strong
v. The State, 1 Blackf 193, 196 (1822), a case that interpreted
the ex post facto clause of the 1816 Indiana Constitution.
Defendant argues that a law that "increase[s] the malignity of a
crime" is a separate category apart from the four listed in
Calder, and should be construed to conflict with Article I,
section 21.

We decline to adopt that reasoning because we conclude
that, in 1822, the Strong court merely interpreted the 1798
Calder categories. The fact that the Calder court listed four
categories and that the Strong court similarly paraphrased, in
identical order, those four categories, leads us to conclude that
the Strong court did not intend to expand the scope of the four
Calder categories, but merely intended to clarify them. For that
reason, we decline to expand Strong beyond the scope of Calder,
as defendant requests, and thus conclude that "increasing the
malignity" of a crime merely modifies and explains the third
Calder category, but adds nothing to its breadth.

12. Defendant asserts that in the mid-nineteenth century
the United States Supreme Court expansively construed the federal
ex post facto clause to forbid any law that "alters the situation
of a party to his disadvantage." See United States v. Hall, 26 F
Cas 84, 86 (CC Pa 1809) (No 15,285), aff'd 10 US (6 Cranch) 171,
176 L Ed 189 (1910). Justice Washington made those comments
about ex post facto laws as a circuit rider in a Pennsylvania
case. Nevertheless, defendant argues that Justice Washington's
view of the reach of the ex post facto prohibition was approved
in Kring v. Missouri, 107 US (17 Otto) 221, 25 S Ct 443, 27 L Ed
506 (1883). According to defendant, though that interpretation
of the federal ex post facto clause was overruled in Collins v.
Youngblood, 497 US 37, 50, 110 S Ct 2715, 111 L Ed 2d 30 (1990),
Justice Washington's interpretation was in effect when the Oregon
Constitution was adopted and should be considered by the court as
part of the historical circumstances surrounding the adoption of
Article I, section 21.

We have serious doubts whether the framers of the
Oregon Constitution embraced Justice Washington's expansive view
of the ex post facto prohibition. However, we need not decide
that point, because, as we hold post, the sex offender
registration law at issue here does not "alter the situation of a
party to his disadvantage" to the degree necessary to violate the
ex post facto clause of either the state or federal constitution.

14. The registration and reporting requirements are similar
to Oregon's driver license requirements. An Oregon driver
license must be renewed every eight years, ORS 807.130, and any
change of address must be reported by the license holder to the
Department of Transportation within 30 days of the change, ORS
807.560.

15. The intent-effects test has been applied by courts
throughout the country to determine whether state sex offender
registration and notification laws violate either the state or
the federal ex post facto clause. See Dean v. State, 60 SW 3d
217, 220-21 (Tex App-Houston [14th Dist] 2001) (citing cases from
various state and federal circuits).

16. As applicable here, the factors identified by the
Supreme Court can be formulated as follows: (1) whether the
registration requirement involves an affirmative disability or
restraint; (2) whether the registration requirement historically
has been regarded as a punishment; (3) whether the registration
requirement comes into play only on a finding of scienter; (4)
whether the registration requirement promotes the traditional
aims of punishment-retribution and deterrence; (5) whether the
behavior to which the registration requirement applies is already
a crime; (6) whether there is some purpose other than punishment
that rationally can be assigned to the registration requirement;
and (7) whether the registration requirement appears excessive in
relation to the alternative purpose assigned to it by the
legislature.